Citation Nr: 1501318
Decision Date: 01/12/15 Archive Date: 01/20/15
DOCKET NO. 10-29 889 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to special monthly compensation based on the need for aid and attendance or by reason of being housebound.
REPRESENTATION
Veteran represented by: Florida Department of Veterans Affairs
WITNESSES AT HEARING ON APPEAL
The Veteran's daughter
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The Veteran served on active duty from November 1944 to July 1946. This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In November 2014, the Veteran's daughter testified at a Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's Virtual VA file. At the hearing, the Board, on its own motion, advanced the Veteran's case on its docket pursuant to 38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
The evidence is in equipoise as to whether the Veteran is in need of regular aid and attendance by reason of his service-connected disabilities.
CONCLUSION OF LAW
Affording the Veteran the benefit of the doubt, the criteria for special monthly compensation based on the need for regular aid and attendance of another person have been met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2014). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision.
Background
In an October 2007 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus, effective June 22, 2007. The RO assigned initial 100 percent and 10 percent disability ratings, respectively, as well as special monthly compensation based on deafness in both ears. 38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350(a)(5) (2014). These ratings have remained in effect to date. Service connection is not in effect for any other disability.
In January 2009, the Veteran submitted a claim for special monthly compensation based on the need for the regular aid and attendance of another person.
VA clinical records assembled in connection with the Veteran's claim show that in January 2009, he was hospitalized in connection with paranoia and inappropriate behavior. On admission, it was noted that he had a long history of bipolar disorder. Over the last few years, however, he had begun exhibiting increasing confusion, paranoia, and isolation. It was noted that the Veteran lived alone but that his daughter checked on him periodically. It was also noted that the Veteran was hard of hearing which limited the interview. In light of his disabilities, the Veteran's treating team recommended an assisted living facility placement, although the Veteran's daughter indicated that she wished her father to remain independent and indicated that she would arrange for services in the Veteran's home. The diagnoses on discharge included delirium, not otherwise specified, rule out bipolar disorder, and hypomania.
The record on appeal includes a January 2009 VA aid and attendance letter completed by a VA social worker. The social worker noted that the Veteran's diagnoses included delirium. She noted that the Veteran required prompting to dress and bathe. He did not require assistance walking or attending to the wants of nature. She indicated that the Veteran could not travel to a VA medical facility for care independently, nor could he live alone, as his thoughts were disorganized. He could not cook for himself because he left things on the stove unattended.
In a February 2009 Report of Contact, the Veteran's daughter reported that the Veteran would continue to live alone but would receive daily visits from her and a home health care worker. VA clinical records show that in March 2009, the Veteran's daughter reported that they had placed the Veteran in an assisted living facility in Florida after all which had been helpful.
An April 2010 field examination report noted that the Veteran lived alone in a trailer in North Carolina across the street from his son who checked on him often. He had caregivers during the day and his daughter indicated that she planned to move to the area once her son graduated from school. The field examiner observed that the Veteran was oriented, clean, and neatly dressed. He was able to recognize his family members although he was unable to manage his own finances. The field examiner noted that the Veteran's daughter managed his and paid his bills. The Veteran was noted to be very hard of hearing and was having trouble, even with his hearing aids. The field examiner noted that the Veteran attended an adult center five days weekly for meals and to participate in senior activities. He also noted that the Veteran enjoyed helping around the trailer park to the extent his disabilities allowed.
VA clinical records dated in July 2010 note that the Veteran was residing in an assisted living facility. In August 2010, he moved to an assisted living facility in Florida near his daughter. In an August 2010 Statement as to Level of Care and Cost of Care, a physician indicated that the Veteran required limited medical assistance such as help with medications and bathing. She noted that the Veteran exhibited poor hygiene, poor safety, poor memory, impaired hearing, and was unable to care for himself. She indicated that the Veteran was able to travel with an escort to a VA facility for medical care but that he could not live alone due to poor safety and poor memory. Rather, he needed the assistance of another person in protecting himself from the ordinary hazards in his daily environment.
At a November 2014 Board hearing, the Veteran's daughter testified that she had been the Veteran's full-time caregiver for the last ten years, but for three brief periods when he was in assisted living facilities. She indicated that the Veteran was essentially totally deaf, rendering him unable to participate in conversation. She also indicated that the Veteran was unable hear alarms, sirens, or other such indicia of danger. Although his delirium had an impact on some of his day to day activities, she indicated that her observations were that it was his hearing loss that rendered him unable to protect himself from the hazards of his environment. She noted that the Veteran was no longer able to drive due to his hearing loss. She described an incident in which he had backed his car into a neighbor, even though the neighbor had banged on the Veteran's car and yelled at him stop. She noted that the Veteran had also driven into an intersection as fire trucks were coming, because he could not hear the sirens. The Veteran's daughter testified that the Veteran was also unable to hear anyone banging on his door. She noted that they had had to leave a key outside for the Veteran's caregivers because he would not respond to their knocks when they arrived. The Veteran's daughter also noted that the Veteran had not been able to hear the smoke alarm after he had put something on the stove and then forgotten about it. He ended up burning his kitchen. The Veteran's daughter noted that the Veteran had been given a life link, but was unable to hear its alarm. She also noted that the Veteran was unable to walk to a nearby clubhouse because he could not hear cars coming. On one occasion, she recalled that he had walked right into the street as a car was coming. The Veteran's daughter indicated that when she questioned him as to what he had been thinking, her father explained that although he had seen the car, he thought it was parked because he could not hear it. The Veteran's daughter also indicated that the Veteran's physician had told her that he could not treat the Veteran without a representative present as he was unable to effectively communicate with the Veteran due to his hearing loss.
Applicable Law
Special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2014).
The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352 (2014).
Special monthly compensation is also payable at a specified rate if the Veteran, as the result of service-connected disability, has one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher or is permanently housebound. The Veteran will be found to be permanently housebound if, due to his service-connected disabilities, he is confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2014).
VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Analysis
As a preliminary matter, the Board notes that the Veteran does not meet the criteria for special monthly compensation at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. Service connection is currently in effect for hearing loss, rated as 100 percent disabling; and tinnitus, rated as 10 percent disabling.
In addition, the record does not demonstrate that the Veteran is housebound or that he is confined to his home or the immediate premises. Although the Veteran is totally disabled due to his service-connected hearing loss and tinnitus, he is not shown to be restricted to his home or the immediate premises. In fact, the record supports the conclusion that the Veteran is mobile and is not confined to his home as a result of his service-connected disabilities. For example, the Veteran was able to visit a senior center five days weekly to take his meals and to participate in activities for seniors. He is also shown to be able to visit a VA facility for medical care with an escort. Accordingly, the Board finds that entitlement to special monthly compensation at the housebound rate is not established. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2014).
The Board, however, finds that the record on appeal is sufficient to establish entitlement to special monthly compensation based on the need for the regular aid and attendance of another. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2014). Although the record establishes that the Veteran is unable to manage his finances or keep himself ordinarily clean and presentable, it appears that these factors are largely due to his nonservice-connected delirium/dementia. On the other hand, the Board finds that the Veteran's service-connected hearing loss is shown to produce poor safety to the extent that he is unable to live alone. In other words, his service-connected hearing loss is sufficiently disabling to render him in need of the assistance of another person in protecting himself from the ordinary hazards in his daily environment. 38 C.F.R. § 3.352 (2014). This conclusion is strengthened by the November 2014 testimony of the Veteran's daughter, who described multiple incidents in which the Veteran's service-connected hearing loss reduced his ability to recognize indicia of danger and produced poor safety in his home and immediate surroundings.
In summary, the Board concludes that it is at least as likely as not that the Veteran's service-connected disabilities, standing alone, render him disabled to the extent that he requires the regular aid and assistance of another person. Under these circumstances, special monthly compensation based on the need for aid and attendance is warranted. 38 U.S.C.A. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to special monthly compensation based on the need for aid and attendance is granted, subject to the law and regulations governing the payment of monetary benefits.
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K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs